Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 143

 

P197/14

OPINION OF LORD JONES

In the petition

MDMH (BANGLADESH)

Petitioner;

for

 

Judicial review of decisions of the Secretary of State for the Home Department

 

Petitioner:  Forrest;  AN Solicitors

Respondents:  Pirie;  Office of the Advocate General

19 September 2014

Synopsis

Acting on behalf of the Secretary of State for the Home Department, an immigration officer decided that the petitioner was liable to be removed from the UK.  The petitioner had a right of appeal out‑of‑country, but applied, instead, for judicial review of the decision.  The petition was dismissed on the ground that the petitioner had not exhausted the alternative procedure.

Introduction

[1]        The petitioner is a national of Bangladesh.  On 11 February 2014, the Secretary of State for the Home Department (“SSHD”) issued a decision that he was liable to be removed from the United Kingdom and, on 18 February 2014, she issued a direction for his removal on 1 March 2014.  Both decisions are challenged in these proceedings and the petitioner asks the court to reduce each of them.  The respondent avers in his answers to the petition that, when first orders were granted in this case, the SSHD cancelled the removal directions and that, the date for removal having passed, there is no practical need now to reduce that decision.

[2]        The case came before me on 1 and 2 July 2014 for a preliminary hearing on the respondent’s first plea in law, which is to the effect that the petition should be refused, because the petitioner has an alternative statutory remedy that is effective in the circumstances of his case.

[3]        The issues which fall to be resolved are (i) whether the petitioner has an alternative statutory remedy, the existence of which bars recourse to the court’s supervisory jurisdiction; and, if so, (ii) on what legal basis are proceedings barred.

 

The factual background

[4]        The following narrative is based on the petitioner’s averments which are admitted by the respondent.  On 2 August 2009, the petitioner was granted leave to enter the UK and to remain until 31 August 2012, in order to study at Edinburgh School of Business.  He entered the UK in September 2009 and began his studies.  On 6 August 2012, the petitioner applied to the SSHD for further leave to remain in the UK, on the basis of his successful application to St Agnes College in Essex to undertake an approved course of study there.  He was granted leave to remain until 30 November 2014.  The SSHD revoked St Agnes College’s sponsor licence and, on 16 October 2013, the petitioner received a letter from the SSHD advising him that his leave to remain in the UK was to be curtailed as at 15 December 2013.  He was told that, before that date, he was either to leave the UK or submit a fresh application for leave to remain.  On 13 December 2013, he submitted such an application, on the basis that the London College of Business Management and Information Technology (“the London college”) had agreed to sponsor him for a course of study which had started on 1 December 2013 and was to last until 30 November 2015. 

 

The area of dispute on the facts

[5]        It is averred on behalf of the petitioner that, in February 2014, he was living at an address in Edinburgh.  That is admitted by the respondent, but the reason for the petitioner’s doing so is disputed.  The petitioner avers that he was unable to attend the beginning of his course at the London college because (i) he was awaiting the SSHD’s decision on his application for leave to remain and (ii) he was unwell.  The respondent denies these averments and avers that the petitioner was required by the London college to attend an induction day in London on 11 February 2014 at 9:30 am.  At 8 am on that date, immigration officers found the petitioner at the Edinburgh address.  Other occupants present told the officers that the petitioner had been living there for the previous “couple of years”.  He was arrested, taken to a police station and interviewed under caution.  In their respective pleadings, the petitioner and the respondent give conflicting accounts of what was said during the interview.

 

The decision of 11 February 2014 and grounds of challenge

[6]        Following the interview, the petitioner was notified that he was regarded as a person in respect of whom removal directions may be given, in accordance with section 10(1)(b) of the Immigration and Asylum Act 1999 (“the 1999 Act”), being a person who used deception in seeking leave to remain in the UK.  The statement of reasons communicated to the petitioner was in the following terms:

“You are specifically considered a person who has used deception in seeking leave to remain in the UK.  You have submitted an application to the Home Office to study for an ACCA qualification at (the London college).  The course was due to start on 01-12-2013.  During an interview under caution, you could not give any details relating to the course you were studying or the location of the college.  You further could not provide details for where your accommodation was in London.

 

You have been unable to give any credible information with regards to the course you are studying.

 

You also admitted that the previous visa you applied for to study at St Agnes College was purely for obtaining leave to remain in the UK not to study at the college.  As such you have used deception in seeking your leave to remain and have therefore breached Section 10(1)(b) of the Immigration and Asylum Act 1999, an offence under Section 24A(1)(a) of the same act.”

 

(The quote is accurate.)

[7]        The petitioner asserts that the SSHD erred in law, because her decision is irrational.  The essence of his complaint is summarised in these averments: 

“Clear and unequivocal evidence of deception is required before a decision that a person is liable to be removed can rationally be reached…  the evidence before the immigration officers on 11 February 2014 that the petitioner had been guilty of deception was neither clear nor unequivocal.” 

 

Relevant statutory provisions

[8]        As is noted in paragraph [2] of this opinion, the respondent argues that there is a statutory remedy open to the petitioner, the existence of which bars recourse to judicial review.  There is no dispute about what are the relevant statutory provisions.  Section 82(1) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) provides that, where an immigration decision is made in respect of any person, he may appeal to the First-tier Tribunal (“FTT”).  The term “immigration decision” is defined to include a decision that a person is liable to be removed from the United Kingdom by way of directions under, among other provisions, section 10(1)(b) of the 1999 Act, i.e.  as a person who has used deception in seeking leave to remain.  Section 92(1) of the 2002 Act provides that a person may not appeal under section 82(1) while he is in the United Kingdom, unless his appeal is of a kind to which section 92 applies.  Section 92 does not apply to an appeal against immigration decisions of the kind which are under challenge in the present application.  (Section 92(2))  It was common ground between the parties, therefore, that the petitioner has a right of appeal against the decision that he is liable to removal, which must be exercised, if at all, after he has left the United Kingdom.

[9]        Rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 230) provides that the tribunal may give directions to the parties relating to the conduct of any appeal.  The rule gives wide powers to the tribunal for regulating its own procedure.  Mr Pirie, who appeared for the respondent, drew attention, in particular, to the provision that directions may provide for a hearing to be conducted or evidence given or representations made by video link or by other electronic means.

 

Submissions for the respondent

[10]      Mr Pirie opened his argument by referring to one English and two Scottish authorities.  These were:

R (Lim and another) v Secretary of State for Home Department (2007) EWCA 773; [2008] INLR 60 (“Lim”);

McGeogh v Electoral Registration Officer, Dumfries and Galloway 2011 SLT 633 (“McGeogh”); and

M v Secretary of State for the Home Department 2014 SLT (“M”).

Later, in the course of his submissions, he cited McGinty v Scottish Ministers 2014 SC 81.

[11]      Counsel for the respondent relied particularly heavily on the English decision.  As in this case, Lim concerned non-United Kingdom nationals who had entered the country lawfully and who were made the subject of a removal direction under section 10 of the 1999 Act.  The reason for the SSHD’s decision in that case, however, was that Mr Lim had breached a condition of his leave to remain.  Notwithstanding that Mr and Mrs Lim had an out-of-country right of appeal, on the same statutory basis as the present petitioner, the Administrative Court gave permission to apply for judicial review.  At the trial of a preliminary issue, the judge held that the alternative remedy of an out-of-country appeal did not provide adequate protection against the possibility that the removal decision was unlawful.  The Court of Appeal held that the lower court should have declined to entertain the claim, on the ground that the claimants had an effective remedy in the form of a right of appeal out-of-country.

[12]      In light of Mr Pirie’s reliance on McGeogh and Lim, there was some discussion about the legal basis on which the court might hold that the existence of an alternative statutory remedy barred resort to the supervisory jurisdiction of the Court of Session.  The question was whether the court has a discretion to entertain an application for judicial review where such a remedy exists and has not been exhausted.  More is said about that later in this opinion.

[13]      Counsel then set out the circumstances in which the decision of 11 February was taken, drew attention to the terms of the pleadings and cited the relevant statutory provisions.  Against that background, he advanced the following propositions based on an analysis of Lim:

(i) in a case where there is a right of appeal out-of-country, the test which the court applies in deciding how to exercise its discretion to allow an application for judicial review to go forward, is to justify departure from the norm, i.e.  to refuse permission, only where there are sufficiently special and exceptional factors;

(ii) the Court of Appeal rejected the submission that everything which section 10 lays down is justiciable, without regard to the statutory appeal mechanism;

(iii) the only matters which are justiciable are disputes about the identity and citizenship of the claimant - matters described in the decision as “precedent facts”;

(iv) cases where the issue concerns a matter other than identity and citizenship of the claimant are rarely likely to escape an adverse exercise of the court’s discretion;

(v) a reason for that approach is that the procedure that Parliament chose to enact should not be emptied of content, whatever the hardship to the claimant;

(vi) the court’s discretion should be exercised in a consistent way, with like cases being treated alike;

(vii) the potential disadvantages of an out-of-country appeal cannot be sufficient reason for the exercise by the court of its discretion to permit an application to be made, because they apply to all out-of-country appeals;

(viii) the Court of Appeal found that, on the facts of the case, it was insufficient reason for giving permission that:  (a) there had been a “colossal overreaction” by the immigration authorities in making a removal direction in the face of a “venial breach of condition”; (b) the judge found that the claimants could not be given a fair hearing because they could not give evidence in person; and (c) the judge was far from clear that a video link would be available to the claimants; and

(ix) the issue that was before the court was “precisely the kind of issue for which the legislation, for better or for worse, prescribed an out-of-country appeal."

[14]      Mr Pirie referred to the following cases in which Lim had been followed:

R (Saleh) v Secretary of State for the Home Department (2008) EWHC 3196 (Admin);

R (RK (Nepal) v Secretary of State for the Home Department (2009) EWCA Civ 359;

BZM v Secretary of State for the Home Department (2009) CSOH 106;

R (Zahid) v Secretary of State for the Home Department (2013) EWHC 4290 (Admin).

[15]      Counsel concluded his submissions on 1 July by advancing the argument that, since an alternative statutory remedy was available to the petitioner and since he pleaded the existence of no special or exceptional circumstances, “in the exercise of its discretion” the court should refuse to entertain the petition.

[16]      The following morning, Mr Pirie advanced further submissions on the question whether the court has discretion to refuse to entertain an otherwise competent application for judicial review, with which I will deal later in this opinion.

 

Submissions for the petitioner

[17]      In reply, Mr Forrest, for the petitioner, argued that judicial review is barred only where all of the elements in the phrase “alternative statutory remedy” are present.  He accepted that, if there is an alternative statutory remedy, properly understood, proceedings for judicial review may not be competent.  (Watt v Strathclyde Regional Counsel 1992 SLT 324, at page 332F)  Before a statutory means of challenging a decision can qualify as a remedy, however, it must be effective.  In support of that submission, Mr Forrest relied, first, on the opinion of Lord Coulsfield in Simpson v Inland Revenue Commissioners 1992 SLT 1069 (“Simpson”).  That case concerned taxpayers who had appealed unsuccessfully to the special commissioners against the disallowance of certain expenses in the calculation of their taxable income.  They appealed to the Inner House by way of stated case.  While the stated case was still pending in the Inner House, the taxpayers, who expressed dissatisfaction with certain aspects of the procedure adopted by the special commissioners, presented an application for judicial review.  Following a first hearing, the Lord Ordinary upheld a plea to the relevancy of the application and dismissed the petition.  In the course of his opinion, his Lordship referred to “the recognised general principle that judicial review is not available where there is a clear, accessible, adequate and convenient remedy elsewhere.”  (Page 1070I)

[18]      Mr Forrest also cited Tarmac Econowaste Ltd v Assessor for Lothian Region 1991 SLT 77 (“Tarmac”).  In that case, the petitioners had applied for judicial review of an entry in the valuation roll, effected by the respondent.  The respondent sought dismissal of the petition on the ground that it was incompetent.  His argument was based on what he submitted was the principle to the effect that the court will not grant redress in the exercise of its supervisory power where all statutory remedies have not been exhausted.  The Lord Ordinary held that, because the petitioners’ statutory remedy had not been exhausted, the application for judicial review was incompetent.  (Page 80F-G and I-J)  In the course of his opinion, his Lordship observed that it was not necessary in that case to attempt any complete classification of the kinds of cases which should fall outwith what he described as the “general principle”.  His Lordship continued as follows:

“Given the recognition that an inadequacy in the statutory alternative may be a sufficient reason for recourse to be had to judicial review, this is an area of law which may well be open to development in the interests of the provision of an effective procedure for redressing wrongs.  But the court should be wary of trespassing on the jurisdiction of a tribunal which is competent to determine the matter in issue.”

 

[19]      On the authority of these cases, submitted counsel, before it can be said that the existence of an alternative statutory remedy bars recourse to the court by way of petition for judicial review, such remedy must be adequate.  In this case, the petitioner seeks reduction of the decision that he was liable to be removed, because, in making that decision, the SSHD erred in law in holding that the petitioner had used deception in applying for further leave to remain in the UK.  It is unnecessary, for the purposes of this opinion, to explain the basis for that assertion.  His out-of-country right of appeal is not an adequate remedy, argued counsel, because it will be difficult to challenge the conclusion that the petitioner used deception if he has to do so from abroad.  In support of a proposition that the determination of the question whether an individual has used deception in applying for further leave to remain is a complex exercise, Mr Forrest referred to Adeydoyin v Secretary of State for the Home Department (2011) 1 WLR 564, at paragraphs 26 and 32.  Counsel contended that it will be extremely difficult to appeal if the petitioner is abroad, having regard to the definition of “deception”.  Further, if there are going to be witnesses, he will be unable to prepare properly for an appeal, because it is unlikely that he will be able to see the witnesses and unlikely that he or his solicitor will be able to control them in the sense of preparing properly.  Mr Forrest was, however, unable to say who such witnesses, if any, might be.  He argued that, if the petitioner is out of the country, it will be difficult for him and his solicitor to see each other.

[20]      Counsel sought to distinguish Lim from the present case on the ground that the issue in Lim which would have to be determined in an out‑of‑country appeal was a simple matter of fact, whilst the use of deception is a far less straightforward matter.  Whether an out-of-country appeal is an effective remedy depends on who made the decision and, in this case, that person was an immigration officer.  The decision making process involved considering whether the use of deception had been established according to the appropriate test, which is a legal test.  In the circumstances, it cannot be right to propose, as the respondent does, that judicial review is not available.

[21]      Mr Pirie responded by referring to the minute sheet which records the immigration officers’ interview with the petitioner and the reasons for deciding that the petitioner had obtained leave to remain in the UK by deception.  The notice intimating to the petitioner that he was a person liable to removal states that, during that interview, the petitioner admitted that the visa that he applied for to study at St Agnes College was purely for obtaining leave to remain in the UK, not to study there.  It was for that reason that the immigration officer who took the decision concluded that the petitioner had used deception in seeking leave to remain and had, therefore, breached section 10(1)(b) of the 1999 Act.  The interview was recorded on DVD.  Consequently, any dispute about what the petitioner said during interview could be easily resolved.

 

Decision and reasons
Does the petitioner have an effective statutory remedy which bars his application for judicial review?
[22]      In the circumstances of this case, section 82 of the 2002 Act provides an effective remedy, the existence of which bars recourse to the supervisory jurisdiction of this court.  The legal test seems clear.  In British Railways Board v Glasgow Corporation 1976 SC 224 (“BRB”), which was produced and referred to as the argument before me developed, the pursuers sought decree of declarator that certain premises which they owned were not liable to be rated for local or domestic water rates because they were situated on their “operational land”.  The defenders argued that the action was incompetent because the pursuers had a statutory mode of appeal of which they had not availed themselves. 

[23]      In the Outer House, the Lord Ordinary held that the action was incompetent because the pursuers had failed to exhaust their statutory remedy and had made no averments explaining their failure.  In the course of his opinion, the Lord Ordinary referred to Dante v Assessor for Ayr, 1922 SC 109 and a number of other authorities, and concluded that they established the proposition that recourse to common law proceedings in the Court of Session is not competent if the complainer has not availed himself of his statutory right of review, “unless the failure was due to ignorance owing to some irregularity of procedure on the part of the assessor or rating authority, to the fact that resort to the statutory remedy would, in the particular circumstances, be otiose or to some other special reason.”

[24]      The Lord Ordinary’s interlocutor dismissing the action was reclaimed to the Inner House.  The reclaiming motion was refused.  In the course of his opinion, the Lord Justice Clerk (Wheatley) said this:

"The defenders' plea to the competency of the action is based on what they maintain is the legal principle [later referred to in the opinion as “the general principle”] that it is not competent to have recourse to the Court of Session for a common law remedy when provision is made by statute for a statutory form of review and recourse to that form of review has not been made.  (Page 237)

 

…

 

… I am of the opinion that the present action is rendered incompetent by virtue of the general principle unless the pursuers can demonstrate that there were here present special circumstances which excluded the operation of the principle.  Examples of such special circumstances would be averments of ultra vires or fraud, but these are not alleged here.  Another example would be where the parties agree that there should not be recourse to the statutory form of appeal.”  (Page 239)

 

(The Lord Justice Clerk had earlier said in his opinion that the principle was subject to the proviso that it may not operate if there are “exceptional” circumstances present in the case.)

[25]      In the same case, Lord Kissen expressed the following view, at page 243 of the report: 

“I think that the reclaiming motion should be refused.  In short, the general principle stated in Dante, supra, and the later cases to which I have referred applies.  The courts' jurisdiction cannot be invoked where, as here, the statutory appeal procedure has not been exhausted and the question sought to be raised in the court could have been decided by the statutory appeal.”

 

[26]      In Tarmac, Lord Clyde referred to British Railways Board, noting the reference in the Lord Justice Clerk’s opinion to “exceptional” or “special” circumstances that may operate to provide an exception to the operation of the general rule.  His Lordship said that a clear example is where the complainer has been prevented from pursuing a statutory appeal through a procedural irregularity on the part of the authority.  (e.g. Sharp v Latheron Parochial Board (1883) 10 R 1163 (“Sharp”))  The case of Hope v Corporation of Edinburgh (1897) 5 SLT 195 was an example of another exception.  The statutory appeal involved an application to magistrates who would be judges in their own cause.  Consequently, the court allowed an application at common law.  A further exception to the general rule, said Lord Clyde, is where the statutory remedy is procedurally available but in the circumstances provides an inadequate method of resolving the issue.  Lord Clyde had in mind a case in which a licensing authority had made a decision to increase the number of future taxi licences by 200.  A taxi operators’ association applied for judicial review of that general decision, its members' interest being to restrict the number of licences issued.  The authority initially challenged the competency of the application, on the ground that there was a statutory remedy available through the procedure for objection and appeal in the case of each individual future application for a taxi licence.  When the case came before the court for a hearing, that challenge was departed from.  The Lord Ordinary expressed the opinion, however, that, since competency was a matter for the court, he was satisfied that the application was competent and related to a matter which was not adequately covered by the statutory procedure.  (City Cabs (Edinburgh) Ltd v City of Edinburgh District Council 1988 SLT 74 (“City Cabs”)) 

[27]      Lord Clyde concluded his review by observing that, since an inadequacy in the statutory alternative may be a sufficient reason for recourse to be had to judicial review, this area of law may be open to development in the interests of the provision of an effective procedure for redressing wrongs.  “But the court should be wary of trespassing on the jurisdiction of a tribunal which is competent to determine the matter in issue.”

[28]      Tarmac is referred to by Lord Coulsfield in Simpson.  His Lordship notes in his opinion that there was a debate about the nature and ambit of the rule that an aggrieved party is not entitled to have recourse to the general supervisory jurisdiction of the court, if another remedy exists and has not been exhausted.  The Lord Ordinary took the view, however, that the application before him was clearly unfounded and, therefore, “quite unsuitable as a basis for any extensive discussion of such issues.”  Lord Coulsfield regarded it as sufficient to refer to the discussion of the law by Lord Clyde in Tarmac, saying that, in the case before him, as in Tarmac, it was “unnecessary to attempt any complete classification of the cases which fall outwith the recognised general principle that judicial review is not available where there is a clear, accessible, adequate and convenient remedy elsewhere.”

[29]      As I have noted, Mr Forrest presented his argument on the basis that the existence of a statutory remedy operates to exclude recourse to judicial review only if such remedy is effective.  In general terms that is correct, but it raises the question as to what constitutes an effective remedy.  In my opinion, the answer is to be found in the formulation of the general principle enunciated by Lord Kissen in the passage from his opinion in BRB which is set out in paragraph [25] of this opinion:

“The courts' jurisdiction cannot be invoked where, as here, the statutory appeal procedure has not been exhausted and the question sought to be raised in the court could have been decided by the statutory appeal.”

 

Where there exists such a statutory remedy, to borrow the words of the Lord Justice Clerk in BRB, an application for judicial review will be incompetent unless unless the petitioner can demonstrate that there are special circumstances which exclude the operation of the principle.

[30]      It is appropriate, at this stage, to say a little about Lord Coulsfield’s view that judicial review is not available where there is a clear, accessible, adequate and convenient remedy elsewhere.  Given that his lordship appeared to be drawing on Lord Clyde’s review of the authorities in Tarmac, it is not difficult to understand what is meant by the words “accessible” and “adequate”.  In elaboration of what Lord Clyde referred to as “one clear exception” to the general principle - where the complainer has been prevented from pursuing a statutory appeal through a procedural irregularity on the part of the authority – his Lordship gave as an example the case where a ratepayer sought to challenge an entry in the valuation roll, by way of application to the supervisory jurisdiction.  A right of appeal was provided by the legislation, but the ratepayer had not been given notice of the entry and so had no opportunity of appealing.  Through no fault of his own, the statutory remedy was not accessible by him.  The competency of judicial review where the alternative statutory remedy is inadequate is also an exception to the general rule of which Lord Clyde gave City Cabs as an example. 

[31]      I am unable, however, to find anything in Lord Clyde’s review to vouch the proposition that judicial review will be available if the alternative remedy is either unclear or inconvenient.  The arguments in Simpson are not recorded in the opinion, and the meaning of these adjectives in this context is not immediately obvious.  If Parliament has given a decision-making power to a person or body, and provided for a form of review, intending it to be available to an aggrieved party in order to redress his or her grievance, and if the question sought to be raised in judicial review proceedings could have been decided in the statutory review process, it is difficult to envisage on what basis that remedy might be said to be so unclear or inconvenient as to leave open the way to judicial review. 

[32]      In stating the general principle, therefore, rather than adopt Lord Coulsfield’s qualification of it, in my view it is preferable to do so as expressed by the Lord Justice Clerk and Lord Kissen in BRB, following what was said by the Lord Justice Clerk (Scott Dickson) and Lord Ormidale in Dante:  it is not competent to have recourse to the supervisory jurisdiction when provision is made by statute for a form of review by which the question sought to be raised in proceedings could have been decided, and where the statutory procedure has not been exhausted; unless the party seeking review can demonstrate that there are special or exceptional circumstances which exclude the operation of the principle.  Guidance on what may constitute such circumstances is to be found in BRB and Tarmac, bearing in mind that the court should be wary of trespassing on the jurisdiction of a tribunal which is competent to determine the matter in issue. 

[33]      A similar approach to the availability of judicial review where there is an alternative statutory remedy is taken in England and Wales.  In Lim, the judge at first instance held that “the alternative remedy does not provide fair, adequate or proportionate protection”.  The SSHD appealed, and it was submitted on her behalf that there was no proper foundation for such a finding.  Counsel argued that the rules permitted an out-of-country appellant to be represented in the appeal, to cross-examine the immigration officers and to give his own evidence by video link.  The Asylum and Immigration Tribunal’s statistics showed that the differential between successful in-country and out-of-country appeals was 18 percent in the former case and 14 percent in the latter.  The undoubted hardship of meanwhile losing one’s job, income and home is an inevitable incident of the system laid down by statute and, while distressing, on no view unusual.  Neither aspect of the case, it was argued, made it exceptional.  In the course of his judgment, with which Wilson LJ and the President of the Family Division agreed, Sedley LJ referred to

“the well-established principle, not confined to the immigration field …:  that where a statutory channel of appeal exists, in the absence of special or exceptional factors the High Court will refuse in the exercise of its discretion to entertain an application for judicial review.” 

 

The appeal was allowed.  Although Sedley LJ does not say so in terms, his Lordship appears to have accepted counsel for the SSHD’s argument.  What Sedley LJ did say, however, is that he could not find anything in the reasons given by the judge at first instance sufficient to support his conclusion, and commented that the issue before the court, as before the court in this case, was “precisely the kind of issue which the legislation, for better or for worse, prescribed an out-of-country appeal.” 

[34]      It is clear that there are significant procedural differences between Scotland and England and Wales in the exercise of the court’s jurisdiction in judicial review proceedings, and these will be looked at presently, because they bear upon the question of the legal basis on which the existence of an alternative statutory remedy may bar judicial review in Scotland.  It is clear, however, that, in both jurisdictions, the availability of a statutory appeal in which the question sought to be raised in judicial review proceedings could have been decided operates to bar resort to judicial review, unless there are special or exceptional circumstances.

[35]      Turning to the facts of this case, there is no suggestion that the question sought to be raised in these proceedings could not have been decided by the FTT in a section 82 appeal.  Indeed, the FTT could have gone further than holding that the SSHD erred in law in determining that the petitioner is liable to removal, which is the limit of the court’s jurisdiction.  The FTT could have reversed the SSHD’s decision, which is what the petitioner ultimately wants.

[36]      In my judgment, there are no special or exceptional circumstances which exclude the operation of the general principle.  Mr Forrest pointed to what he submitted was the complexity of the legal issue.  In my opinion, whether the petitioner obtained leave to remain in the UK by deception is a mixed question of fact and law.  In an out‑of‑country appeal, his solicitor would have argued any issue of law, just as he or she would have done if the appeal had been heard in the United Kingdom.  The FTT is competent to determine legal questions arising in appeals to it and nothing would have turned on the fact that the petitioner would have been out of the UK if and when it was called upon to do so.  On questions of fact, Mr Forrest was unable to identify any witness, other than the petitioner, that it would have been necessary for him to call in support of an appeal.  His evidence could have been given by video link.  The dispute about was said during the petitioner’s interview was capable of resolution by reference to the DVD.  It would have been the responsibility of the FTT to ensure that the petitioner was given a fair hearing.

[37]      When Parliament provided for appeals to be taken out-of-country, it was no doubt aware that appellants might face practical difficulties, of the kind mentioned by Mr Forrest, which would not arise in an appeal taken in‑country.  If judicial review were available to aggrieved parties simply on the basis that an out‑of‑country appeal might present such difficulties, the courts would be, in the words of Sedley LJ, “emptying Parliament’s prescribed procedure of content”.  (Lim, paragraph 25)  The possibility that the petitioner in this case might face such difficulties, therefore, does not justify a departure from the general principle as it is stated in paragraph [32] above.  Consequently, the respondent’s first plea-in-law must be sustained, and the petition dismissed.

 

On what legal basis are proceedings in this action barred?

[38]      In proposing what the court should do in the event that I was persuaded that judicial review is excluded in this case because there exists an alternative statutory remedy, Mr Pirie at first submitted that I should exercise my discretion to refuse to entertain the petitioner’s application.  In support of the proposition that the court has such discretion, Mr Pirie relied on Lim and the other English cases in which the decision in Lim was followed, and McGeogh.  During the course of the hearing, counsel altered his position and submitted that the petition should be dismissed as incompetent.

[39]      Mr Pirie was right to do so.  As has been seen, the Second Division in BRB regarded the question it had to decide as one of competency, as did Lord Clyde in Tarmac.  There are other decisions to the same effect:  Falconer v South Ayrshire Council 2002 SLT 1033; O'Neill v Scottish Joint Negotiating Committee for Teaching Staff; and William Morrison Supermarkets plc Petitioner [2010] CSOH 66 are examples.  Further, as Lord Hope DPSC said, delivering the judgment of the court in Eba v Advocate General [2011] UKSC 29, 2012 SC (UKSC) 1, at paragraph [27], the grounds of judicial control of administrative action in Scotland are based on legal principle.  His Lordship continued:

“Judicial review by the Court of Session is not an exercise of judicial discretion, in contrast to what was said as to the position in English law in R (Sivasubramaniam) v Wandsworth County Court (para 47).  Every person who complains that he has suffered a wrong because of an error or abuse of the power conferred on a decision-maker is entitled to apply to the Court of Session for judicial review under Ch 58 of the Rules of the Court of Session as of right, in exactly the same way as he could have done by way of an ordinary action before the Rules of Court were amended to introduce the current procedure in 1985 (West v Secretary of State for Scotland, p 404).  He does not have to apply for permission to do so and, although the court has a discretion to refuse a remedy in judicial review on what may be described as equitable grounds, it has no discretion to refuse to entertain a competent application (Tehrani v Secretary of State for the Home Department (para 53)).”

 

[40]      In McGeogh, the petitioner, who was a convicted prisoner, sought judicial review of a decision by the Electoral Registration Officer for Dumfries & Galloway, refusing his application to be included in the Register of Local Government Electors.  The matter came before the Lord Ordinary on the petitioner’s motion for first orders, on 31 March 2011, when his Lordship heard submissions on behalf of the petitioner.  The hearing was adjourned until 7 April 2011, when submissions were presented on behalf of the respondents and there was a reply for the petitioner.  The Lord Ordinary’s opinion was issued the following day.

[41]      During the continued hearing on 7 April, counsel for the second respondent submitted that the petition was incompetent, because the petitioner had failed to exhaust a statutory remedy that was available to him.  In reply, it was argued on behalf of the petitioner that the availability of a remedy by way of judicial review was not an issue of competency.  The matter was one to be determined in the exercise of the discretion of the court.

[42]      The Lord Ordinary accepted that submission, holding that the question of the availability of judicial review should be viewed as a matter of discretion rather than of competency.  In light of the authorities to which I have referred in paragraph [39] above, I respectfully disagree.  The Lord Ordinary in McGeogh was not referred to any of these authorities, and Eba was not decided until the following year.  Although McGeogh ultimately went to the Supreme Court, the respondents’ reliance on the availability of an alternative statutory remedy as a bar to the petitioner’s application was departed from in the Inner House.

 

Summary

[43]      In accordance with the general principle, this petition for judicial review is incompetent, because: (i) there exists an alternative statutory remedy by which the question sought to be raised in these proceedings could have been decided; (ii) the petitioner has not availed himself of the statutory procedure; and (iii) there are no special or exceptional circumstances which operate to exclude the general principle.